TaxTMI 
TaxTMI 
1963 (1) TMI 63
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.... in the writ petition, which has given rise to L. P. A. 177 of 1961, are that the consolidation operations started in village Atohan in Tehsil Palwal of Gurgaon district in 1954-55. The petitioners are the proprietors and landowners in the village. The scheme of consolidation as envisaged under Section 24 of the Act came into force in June, 1957 and the landowners were put into possession of their new plots which had been assigned to them by the Consolidation authorities, after the estate had been repartitioned in accordance with the consolidation scheme. The Consolidation operations had concluded in 1957. In 1958, the Settlement Officer disposed of all the appeals which had been preferred by the allottees of the new plots. From the order of the Settlement Officer, one person had preferred an appeal to the Assistant Director which was disposed of in 1958-59. Some applications had been filed to the Director of Consolidation of Holdings (respondent) under Section 42 of the Act for the modification OF revocation of the consolidation scheme. It is said that the predecessor of the present Director personally went to the village and disposed of the said applications making necessary c....
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....repartition proceedings, the revenue records were deposited in the Tehsil and the village again came under the revenue authorities and was released from the charge of the consolidation authorities. The petitioners alleged that they had considerably improved the respective plots which had been allotted to them and some of them had sunk pucca wells on their lands and built houses. Some of the plots had been sold for valuable consideration to third parties and some of the petitioners had planted gardens after putting in considerable labour and expense. On account of the improvements so affected, the value of land had greatly increased since repartition. On 23rd February, 1960, the Director of Consolidation of Holdings, Punjab, Jullundur (respondent No. 2), without notice to the petitioners and at their back wrote a memo to the Settlement Officer suggesting the taking of action under Section36 of the Act and desired that the order of the Settlement Officer dated 4th May, 1956, may be suitably amended. On 3rd June, 1960, an ex parte order was passed by the Settlement Officer (respondent No. 3) amending the scheme which had already been confirmed on 4th May, 1956. In pursuance of the ....
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....e Settlement Officer under Section 36 had varied the scheme. The order of variation of the scheme was published and objections received against the varied scheme were also disposed of by the Settlement Officer and that varied scheme was confirmed on 25th August, 1960 and then repartition proceedings were again published on 24th September, 1960. 9. All these four petitions were heard by Grover, J., and were dismissed, but the parties were left to bear their own costs. 10. Before considering the arguments which have been addressed to us, a brief resume of the salient features of this Act may be given in order to appreciate the policy and plan of the Act. 11. The Act came into force on 14th December, 1948, and so far it has been amended fourteen times. The Act was passed to "provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab (and for the assignment of reservation of land for common purposes of the village)": The words in brackets were added to the preamble by Punjab Act 27 of 1960, which further provided that they would be "deemed always to have been so added". Thus, the mai....
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....een days of the publication. The Consolidation Officer, alter giving a hearing to the objector, may pass appropriate orders confirming or modifying the repartition. Sub-section (3) allows a person dissatisfied with the order of the Consolidation Officer to file an appeal before the Settlement Officer who, after giving a hearing to the appellant, may pass such orders as he considers appropriate. Under Sub-section (4), right of appeal is given from the order of the Settlement Officer to the State Government. Under Section 22 the Consolidation Officer shall cause to be prepared a new record of rights for the area under consolidation giving effect to the repartition as finally sanctioned as provided in Section 21. Section 23 (1) determines the right to possession of new holdings where all persons concerned agree to enter into possession of the holding allotted to them by the scheme as finally confirmed. The Consolidation Officer may allow them to enter into such possession forthwith or from such date as he may specify. Sub-section (2) provides for a contingency where there is no agreement as to entry into possession. In such a case, the owners or tenants are entitled to posses....
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....eproduced below in extenso -- "36. A Scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." 13. Chapter IV deals with other powers of Consolidation Officer which are of ancillary nature, and Chapter V commences with Section 41 and is styled 'General'. Section 42 confers additional power on the State Government and it reads -- "42. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit : Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State....
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....n on whom the power is conferred to exercise that power, then the word is used in the imperative sense. In this sense, it seems that when the authority which confirms a scheme, revokes it and decides upon a subsequent scheme, it is incumbent upon it to have the scheme "prepared, published and confirmed in accordance with the provisions of this Act". It does not mean that the authority is at liberty to do so in one case and forbear in the other. In this case, it becomes the duty of the Settlement Officer to prepare, publish and confirm a subsequent scheme as required by the Act. In this sense, the Legislature cannot be intended to have granted a mere discretion, but rather to have imposed a positive and absolute duty. In this context the word "may" does not signify mere faculty or power, but an obligation. As observed by Lord Blackburn in Julius v. Lord Bishop of Oxford, (1880) 5 A. C. 214, "The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right." Coleridge, J., in Queen v. Tithe Commissioners, (1849) 14 QB 459 at p. 474 said,-- "The words undoubtedly are only empowering; but it has been so often decided as to have ....
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....icated with no liberty to deviate. 17. The next expression used in Section 36, which calls for scrutiny, is "at any time". According to the learned counsel for the appellants, these words relate to the pendency of the consolidation proceedings. The terminus a quo is the preparation of the draft scheme after the Government has declared its intention for consolidating the holdings under Section 14, and the terminus ad quern is the delivery of possession on the preparation of record of rights under Sections 22 and 23. According to the learned counsel for the State, the words "at any time" admit of no limitation and the phrase is to be construed to mean "at all times", and even "from time to time". Learned counsel for the appellants maintained that if the interpretation placed upon these word's by the respondents is to be accepted, then Section36 deserves to be struck down as ultra vires the Constitution, as it contravenes the fundamental rights under Articles 14 and 19 (1) (f), and it confers unfettered and arbitrary power for varying or revoking the scheme. 18. The phrase "at any time" is frequently used in the statutes and its meaning has to be gathered from the context in....
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....tention was to keep them in a state of flux liable to be disturbed at the subjective will, whim, or caprice of a particular authority. The result will, therefore, be that there will be no guarantee of tenure even in the case of an absolute owner to exercise the well-known and varied rights of ownership over his property, and there can be no impetus to make any improvements. In most cases. the process of consolidation may result in introducing an element of uncertainty which would make the enjoyment of a particular property extremely precarious resulting in unintended insecurity. It could not conceivably be the object of the Act to confer power on any authority which may be exercised to the detriment of the object of the Act and result in uncertainty to the fightholders whose possession could thus be frequently shifted to the detriment of most. The power under Section 36 cannot be unrestricted unbridled or limitless and there has to be a terminus ad quem, that is, a point after which the power of variation or revocation terminates and is no longer exercisable. For determining the two terminii, the starting point and the culminating point, of the exercise of the power under Section 3....
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....ition consequent upon the scheme. Possession has also to be delivered in accordance with the scheme of consolidation. Under Sub-section (1) of Section 23, if all the persons concerned, owners and tenants, affected by the scheme agree to enter into possession of the holdings allotted to them, the Consolidation Officer may allow them to enter into such possession forthwith or from a specified date. Sub-section (a) contemplates the situation where the rightholders do not agree 'to enter into possession, and in that event they shall be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme under Section 20 (4) or, as the case may be, of the preparation of the new record of rights under Section 22 (I). The question that calls for examination is what, if any, powers are left with the Settlement Officer (Consolidation) after the scheme is confirmed and full effect has been given to it including the entry into possession and the preparation, of the new record of right? That stage is reached after the consolidation is completed. After the consolidation proceedings ar....
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....conflicting. From the drift of the Act and the intention of the Legislature, though without any attempt to reconcile the provisions, it was concluded that Section 22, which referred to preparation of records of rights, contemplated repartition after all the objections, appeals and further appeals have been finally disposed of and there can be no transfer of possession in pursuance of a "finally confirmed" scheme within Section 23 (1) till the objections etc., are decided, as possession in case of parties not in agreement can only be transferred after the preparation of new record of rights. Mahajan, J., remarked - "If, on the other hand, possession in case of repartition can only be transferred after the preparation of the record of rights and the record of rights can only be prepared after, objections, etc., to the repartition as provided in Section 21 have been disposed of, the provisions of Section 24 (1) would become redundant, because Section 24 (1), contemplates transfer of possession before the objections, appeals and further appeals contemplated by Section 21 have been decided. Therefore, what emerges from the combined reading of Sections 20, 21 and 22 is that a sc....
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....insecurity and instability. On this assumption the very purpose of the Act will be defeated and the result would be not consolidation, which is the manifest intention of the statute, but indetermination and fluctuation. A statutory provision must be construed to effectuate the declared intention of the Act rather than to hinder it from its known purpose and such a drastic provision ought, therefore, to be construed narrowly and strictly. 23. Again, the language of Section 36 needs to be compared to that of Section 42, the scope of which is wider. Under Section 36, the power conferred upon the authority which confirms a scheme refers to varying or revoking a scheme of consolidation confirmed under the Act; This power is not exercisable prior to confirmation of a scheme and avails in respect of a scheme. Section 42 which is broad-based enables the Government to satisfy itself as to the legality or propriety of "any order passed, scheme prepared or confirmed or repartition made by any officer under this Act." Under Section 36, no power can be exercised to check the legality or propriety of any order passed, scheme prepared but not confirmed or repartition made. If repartition is to....
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....ite the terminal point having reached and the proceedings of consolidation, having ended, can the Settlement Officer still exercise his authority and then even after the passage of several years, or, theoretically, even after decades, without violating the appellant's fundamental rights. Under this head, reference will also be made to other lacunae in the provisions of Section 36 which make it vulnerable on ground of its being violative of principles of natural justice. It is said that this section gives unfettered discretion to the Settlement Officer to vary or revoke a scheme not only at all times and from time to time, but also arbitrarily, his discretion being unfettered and uncanalised. It is said that Section 36 vests un-guided discretion in the authority uncontrolled by any safeguards. The powers are completely unregulated. The other objectionable feature of Section 36 is that the Settlement Officer may vary or revoke scheme without giving opportunity to the party affected to object to the proposal, be he an owner, tenant, a judgment-creditor, or a transferee. It is further said that the exercise of this power is not subject to any revision or appeal. The Settlement O....
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....several beneficent purposes and the vested rights of the Panchayat are equally liable to be interfered with, curtailed, or taken away in respect of particular units or parcels; It was said that a further element of uncertainty is introduced when the process of variation and revocation can be repeated ad libitum. 28. The stand taken by the Punjab State that the power conferred under Section 36 admits of 10 limitation in matter of time and is exercisable repeatedly, as often as the authority may like to interfere, has been, resisted on the ground that Section 36 is a sweeping measure which extinguishes title, disturbs possession, unsettling everything abruptly without notice or opportunity, and without assigning any reason; and therefore this provision was said to be drastic and undefined. 29. Mr. Lachhman Dass Kaushal for the respondents, in refutation of the above criticism, has stated that the provision does not suffer from the alleged infirmities. He has drawn our attention to the words occurring in Section 36 to the effect that the power is exercisable "subject to any order of the State Government that may be made in relation thereto". He says that there is no arbitrarines....
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....to apprise the Settlement Officer that the scheme as already confirmed is to their benefit and its reversal would be to their detriment. By being deprived of this opportunity the audi alteram partem rule is thus infringed. 31. The arguments referred to above raise two-matters which must be examined and disposed of independently of each other. The first question is whether Section 36 is to be struck down on the ground that it is violative of fundamental rights-mentioned in Articles 14 and 19 (1) (f) of the Constitution. The second matter which calls for consideration is whether independently of the rights conferred by the abovementioned Articles, Section 36 is bad because it infringes the rule of natural justice which is a pervading principle of universal equity - " Le principe que nul ne doit etre condamne ou prive de ses droits sans etre entendu, et surtout sans avoir meme recu avis qtte ses droits seraient mis on jeu est dune equite universelle, (the principle that no one ought to be condemned or deprived of his rights without a hearing and especially without having received notice that his rights would be imperilled is one of universal equity), (per Rinfret, C. J., i....
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.... is at present did not receive the assent of the President. The original Act, 50 of 1948, had received the assent of the Governor-General of India on 7th December, 1948, and Section 36 then stood without the words "the authority which confirms it subject to any order of the State Government that may be made in relation thereto and". By the amending Act 20 of 1953 these words were inserted and now Section 36, as amended, reads -- "36. A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by (the authority which confirms it subject to any order of the State Government that may be made in relation thereto and) a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." The amending Act was not reserved for the consideration of the President and consequently did not receive his assent. It received the assent of the Governor of Punjab on 28th April, 1953. After Punjab Act 20 of 1953, the parent Act was amended on ten occasions, though no changes were brought about in Section 36. Out of the subsequent amending Acts, Punjab Act 22 of 1953 and Punjab Act 39 of 1954 had recei....
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.... it is contended that as the only amending Act which amended Section 36. namely, Punjab Act 20 of 1953, had received the assent of the Governor and not of the President, its provisions remain unaffected by what is contained in Article 31A(1)(a). It has to be remembered that proviso to Article 31A refers to "laws made by the Legislature of a State" and ex vi termini this cannot refer to laws made by Legislatures of 'Provinces' as the term was known in pre-Constitution period. The 'States' have been created by the Constitution and the proviso does not refer to pre-Constitution laws and, therefore, the Proviso cannot refer to the parent Act, East Punjab Act 50 of 1948, in which Section 36 occurred in its unamended form. 35. Article 316 is not dependent upon Article 31A and cannot be treated as illustrative of the rule laid down in Article 31A. Article 316 validates with retrospective effect Acts enumerated in the Ninth Schedule and Punjab Act 50 of 1948 is not one of them. The objectionable portions in Section 36 which are said to be violative of the fundamental rights have been existing from the very commencement of the Act. From the point of view of inconsistency ....
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....the Orissa Legislative Assembly on 17th January, 1950 and was passed by the Assembly on 28th September, 1951. The Governor of Orissa reserved it for the consideration of the President who gave his assent on 23rd January, 1952. Since then the Act underwent several amendments and the one with which the High Court was concerned was the amendment made on 24th December, 1954, by which the definition of the expression "estate" was enlarged. Article 31A was inserted in the Constitution oil 18th June, 1951. The question was that the President's assent to the Act having already been given under Article 201 all the consequences as described in Article 31, Clauses (3) and (4), and in the proviso to Article 31A, would necessarily follow. In this connection the following observations were made by Narasimham C. J. - "Hence as a matter of construction it must be held that the words 'law providing for acquisition' occurring in Article 31A(1) would include not only the parent Act providing for acquisition but also the amending Act which should be deemed to have been incorporated in the parent Act even though the amending Act, in express terms, provides only for textual amendmen....
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.... Vati Bai, (S) AIR 1957 SC 521 was cited in order to show that an amending Act which is explanatory of the provisions of the main Act does not become bad for want of President's assent. In the instant case, however, President's assent had been received in the case of a number of Acts. When an amending Act goes to the President for his assent, the President, while assenting to it. is presumed to consider the provisions of law both before and after the amendment. If, on consideration, the President were of the view that Section 36 transgressed the fundamental rights under the Constitution, he could have withheld his assent. Apart from the fact that the amending Act 20 of 1953, which introduced certain changes in Section 36 of an inconsequential kind, those changes were in the nature of imposition of some limitation or fetters in the matter of variation or revocation of the scheme. I am therefore of the view that both the original Act and the subsequent Acts, which from time to time, incorporated amendments in it, are not vulnerable for the reason that certain provisions were inconsistent with, or take away, or abridge, any of the fundamental rights conferred by Articles 14, 1....
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....s pithily put by Sir Edward Coke (i) vocate, (ii) interrogate, and (iii) judicat, that is to say, call, question and adjudicate. The principle is of very ancient lineage and was known to the early Greeks and the Romans besides being enshrined in the scriptures, (vide Judicial Review of Administrative Action by De Smith p. 102). Seneca, the statesman, philosopher and writer, who died in A. D. 65, in his tragedy Medea 11 199 expressed the rule in the following words - Qui statuit, aliqua parte inaudita altera, aequum licet statuerit, haud aequus fuit, -- (He who comes to a conclusion, when the other side is unheard, may have been just in his conclusion. but yet has not been just in his conduct". These lines have been cited with approval in several reported decisions by early English Judges, vide inter alia, Boswell's case (1605) 6 Co. Eep. 48 b at 52a : 77 E. R. 326 (331); Bagg's case, (1615) 11 Co. Rep. 93 b at 99 a : 77 E. R. 1271 (1280); R. v. Archbishop of Canterbury, (1859) 1 E and E 545 (559) : 130 ER 1014 (1019); Wood v. Woad, (1874) 9 Ex 190 (196, 197); and Smith v. R., (1878) 3 AC 614 (624). In (1874) 9 Ex 190 Kelly C. B. adopted what Seneca had said abov....
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....pressed by Holt C. J., in City of London v. Wood (1701) 12 Mood. Rep. 669 (687). In 1723, Fortescue, J., in R. v. Chancellor of Cambridge, (1723) I Strange 557 : 93 ER 698 (704), commonly known as Dr. Bentely's case, said - "The laws of God and man both give the party an opportunity to make his defence, if be has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also." To the later generations, the above view is bound to appear as fanciful, but even then it is indicative of the sanctity attached to the principle of audi alteram partem, and this is an illustration of a divine invocation in support of the principle. The last attempt to uphold the supremacy of natural law over Acts of the Legislature was made in 1824 by Best, J., in Forbes v. Cochrane, (1824) 2 B and C 448 : 107 ER 450. The subject was slavery and citing from Blackstone's Commentaries Vol. I p. 42 that "if any....
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....e recognised by the common law of England, Parliament is omnipotent." Again, when that case was heard in appeal before the House of Lords, Lord Moulten said - "Their authority was purely statutory, and if the statute had authorised them to do these acts without giving any appeal, the legislation might be considered to be unwisely drastic, but it would have to be recognised and enforced by the Courts, and no such question as to whether or not it was 'contrary to natural justice' could possibly be considered by the Courts." (Local Govt. Board v. Arlidge, 1915 AC 120 (150) ). 40. The rules of natural justice require that a person or a body exercising judicial or quasi-judicial functions must act in good faith, listen fairly to both sides, give fair opportunity to the parties litigating to present their case. Earl of Selborne in Spackman v. Plushtead Board of Works, (1885) 10 AC 229, used the phrases "the substantial requirements of justice" and at another place "the essence of justice" to mean natural justice, when he observed - "No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no mor....
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....ousing Co. v. Oxford City Council, 1940 Ch. 70 (85). 42. In most of such cases, the problem was really one of interpretation of the statute as it was not the practice of legislative draftsmen either to place or delimit obligations to follow the rules of natural justice "since to do so would be in truth a most difficult drafting task in view of the elasticity of the rules and the variety of circumstances in which they may be relevant, the work of construction must often be largely creative. A decision as to whether or not the rules apply may depend on ascertainment of the solution that would best accord with the purposes of the legislation as a whole", (vide Administrative Law-Natural Justice-Eight of a Hearing, 1954 Cambridge Law Journal p. 16). Lord Parmoor, while delivering the judgment of the Privy Council remarked - "The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can. be formulated." (vide De Verteuil v. Knaggs, 1918 AC 557 (560) : (AIR 1918 PC 67 at p. 68) ). Where the exercise of the power involves the destruction or demolition of the p....
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....and without giving him a chance of being heard. The appeal was allowed. The House of Lords reversed the decision of the Court of Appeal holding that the plaintiff had no right to object to the Minister's order on this ground. Lord Haldane, L. C., observed, during the course of his speech, that when the duty of deciding an appeal was imposed "those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately meeting the case made against them. The decision must be given in the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice." Lord Haldane, however, expressed the view that the procedure of other tribunals need not follow the same lines and may vary according to the nature of the tribunal and it may follow its own particular methods of procedure and without following the methods adopted by: the Courts. The Government department could carry out its judicial function in free and informal manner but consistent with the elementary ideas of justice, and unfettered by conventional restrictions. No restriction....
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....nd the parties may have a psychological sense of grievance. But even if they are observed with the utmost zeal, injustice may still be done. In short, natural justice is not merely enough. The rules it indicates do little to ensure satisfactory decisions in the complex world of public administration in which we live." (Justice and. Administrative Law, p. 409). He counselled some form of appeal from the decisions of administrative tribunals at least in more important cases. 47. At this stage I may also refer to The Donnoughmore Report. (Cmd. 4060) issued in 1932 by the Committee on Ministers' Powers appointed by Lord Sankey, L. C., in 1929 to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decisions, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of law. The Committee consisted of seventeen eminent lawyers and jurists, including. Prof. Sir William Holdsworth, Sir Leslie Scott, later Scott, L. J., and Mr. Gavin Simonds, la....
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....e Report "a true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites : "(i) The presentation (not necessarily orally) of their case by the parties to the dispute, (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (i) and (2), but does not necessarily involve (3), and never involves (4). The place of (4) is in fact taken by administrative action, the Character of which is determined by the Minister's free choice." (p. 73). At p. 75, the Report proceeds as under - " * * 9 a....
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....natural justice while maintaining in fact the basic needs of executive despatch. The principles of natural justice to which great sanctity was attached in early decisions of English Courts have been eroded in relation in administrative tribunals by many statutes. This tendency has now been checked by the welcome provisions of the Tribunals and Enquiries Act, 1958. Till such time that an analogous Act is forged on the legislative anvil in India, a detailed reference to the provisions of the English statute will be otiose. 49a. Before dealing with the principles of natural justice as adopted in India, a reference to their reception in other jurisdictions, where justice is administered under somewhat similar conditions, will be of some advantage. 50. In 1953-2 Canadian LR (SCR) 140, the appellant-association called a strike of its members who were teachers in violation of the Public Services Employees Disputes Act, which forbids such action from the employees of a school corporation. The respondent-Board, thereupon without notice to the appellant, cancelled its certificate. Rinfret, C. J., held that having acted as a judicial tribunal, the Board must be assimilated to a Court of....
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....ial Court was - "II est contraire aux principles fondamentaux de la justice qu'une decision judiciaire ou quasi-judiciaire soit endue, sans audition des parties --(P- 159) (It is contrary to the fundamental principles of justice that a judicial or quasi-judicial decision could be given without hearing the parties.") Rand, J., observed - "The second objection is that before revoking the certificate for cause, the Board must hear the party to be affected by that action. Audi alteram partem is a pervading principle of our law, and is peculiarly applicable to the interpretation of statutes which delegate judicial action in any form to inferior tribunals : in making decisions of a judicial nature they must hear both sides, and there is nothing in the statute here qualifying the application of that principle. "The only answer suggested to this is that the Board, being an 'administrative body', can, in effect, act as it pleases. But in this we are too much the prisoners of words. In one sense of administration, in the enactment o....
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....w it call for notice and hearing -- an opportunity to appear and to rebut the charge." (Jt. Anti-Fascist Refugee Committee v. McGrath, (1950) 341 US 123, 178). Courts in America have been of the view that where the exercise of a statutory power adversely affects certain valuable rights, e.g. property rights, the requirement of notice and hearing, where the statute was silent, was deemed implied (vide Wong Yang Sung v. McGrath, (1949) 339 US 33). 53. Courts in India have been acting as vigilant sentinels on the qui vive to see that the principles of natural justice, as discussed above, are not violated by a judicial or quasi-judicial authority. In the case of the latter, the requirements of natural justice vary according to the provisions and intendment of the particular provisions. One of the broad principles of natural justice is that a quasi-judicial authority cannot make any decision against a&nb....
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....n Letters Patent Appeal before two learned Judges of that Court, there was a disagreement between them on certain matters and, therefore, a reference to the third learned Judge was called for. The two learned Judges were in agreement to the extent that no duty was cast on the committee to act judicially. The third learned Judge dealt with the case on the basis that the committee was acting merely administratively. On that assumption also, the learned Judge expressed the view that the examinees were entitled to a hearing. The appeal, in accordance with the opinion of the third learned Judge, was allowed. The Board of High School then took up the matter to the Supreme Court. The Supreme Court expressed its agreement with the principles which had been summarised by Dass J., (as he then was), in the case of Province of Bombay v. Khushal Das, AIR 1950 SC 222(260), in the following words: "The principles, as I apprehend them are: (i) that if a statute empowers an authority, not being a Court in the ordinary, sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights ....
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....ve the duty to act judicially. Since a writ of certiorari can be issued only to correct the error of a Court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is quasi-judicial act or an administrative act, is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J." Dass C. J. expressed the view that even where an action to be taken was administrative in character, the ordinary rules of fair play had nevertheless to be observed. On the facts found in Radheshyam's case, AIR 1959 SC 107 the appellants had been given more than fair play. Bhagwati J., also thought that the appellants had notice of the charges levelled against them and they had been given an opportunity to render full explanation in regard to the same and that the principles of natural justice-had been complied with. Bhagwati J., however, refrained from expressing an opinion on the vexed question as to whether an act performed by the State Government was quasi-judicial or administrative in character. S. K. ....
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....he Act are meant to meet not only a triangular situation with two contesting private parties before the officer concerned, but in several cases a multi-angular situation with a large number of contestants asserting their individual rights against one another. Neither expressly nor by necessary implication, the functions of the authority can be said to be purely administrative. Essentially, they are of a judicial nature and can, therefore, fitly be styled as quasi-judicial requiring the .observance of rules of natural justice. The authority is not entrusted with an unfettered discretion permitting it to transgress the principles underlying audi alteram partem rule. The consolidation proceedings are unlike matters where the obligation to give notice and a hearing can obstruct the taking of prompt preventive or remediable action as happens in cases of emergency where the requirements of notice and hearing by themselves defeat the very purpose of an emergent situation. This is not even a case where the duty to give notice or opportunity to be heard to a party can be obviated by the conduct of a litigant. The applicability of the operation of the maxim cannot be brushed aside on the ....
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....plied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined. I find nothing in Section 53-A which in terms imposes any duty on the State Government to act judicially. No form of procedure is laid down or even referred to from which such a duty could be inferred. On the contrary, one finds a significant omission of any provision like that embodied in Sub-section (5) of Section 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. It is also material to note that whereas an order under Section 57 is of a permanent character the one to be made under Section 53-A is to be of a limited duration, i.e., for such period not exceeding 18 months as may be specified in such order. Further, Section 53-A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by Section 53-A, for a....
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....er indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it wilt be impossible and indeed inadvisable to attempt to define exhaustively." While making the above observations, Wanchoo J-, referred to the judgment of Parkar J., in R. v. Manchaster Legal Aid Committee, 1952-2 QB 413. 60. The serious effect following a decision whether an examinee had committed fraud was also a factor which was taken into consideration as causing a duty on the Committee to act judicially and also that it had to decide objectively certain facts which might seriously affect the rights and Careers of examinees. In the other case, arising out of Stamp Act, Board of Revenue U. P. v. 'Vidyawati, AIR 1962 SC 1217, it was also observed: "The question whether an authority, like the Board of Revenue, acts judicially is to be gathered from the express provisions of the Act in the first instance. Where, however, the provisions of the Act are silent, the duty to act judicially may be inferred from the provisions of the statute or may be gathered from the cumulative effect of the (nature and the rights affected, the manner of the Disposal provi....
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....s exclusio alterius' is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the 'expressio' complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant." When this case was taken up before the Court of Appeal: Colquhoun v. Brooks, (1888) 21 QBD 52 (65), Lopes L. J. said: "The maxim 'expressio unius, exclusio alterius,' has been pressed upon us. I agree with what is said in the Court below by Wills J., about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard t....
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....vely administrative. (3) When exercising powers under Section36, it is incumbent upon the authority to give a prior notice to the parties concerned and an opportunity to present their case for its consideration. The hearing may not necessarily be oral. (4) The phrase "at any time" in Section36 of the Act means at any time after preparation of the draft scheme but before repartition which takes place after all objections, appeals, etc., are disposed of. The power under Section36 cannot be exercised after the new record of rights comes into force." 66. I am, therefore, of the view that as proceedings under Section36 of the Act are quasi-judicial and the authority has revoked the scheme of consolidation without notice to the respective appellants, who are the parties interested, and without giving any opportunity to them to submit their objections against the proposed change, and long after they had entered into possession in accordance with the new scheme and after the preparation of the new record of rights, their respective appeals deserve to succeed. The result is that the proceedings taken under Section36 of the East Punjab Holdings (Consolidation and Prevent....
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....nstitutional challenge, for, it would clearly expose the title to the holding to a permanent uncertainty -- a result not in accord with the fundamentals of our Republican jurisprudence and, therefore, not readily agreeable to our instincts. I am unable to persuade myself to hold that the Settlement Officer appointed merely for the purpose of consolidating holdings under the Consolidation of Holdings Act could have been intended by the Legislature to retain the unrestricted power of varying or revoking the scheme even after the purpose of consolidating the holdings is finally accomplished under the Act. As to when this purpose cart be deemed to be finally accomplished under the Act is again a question which does not seem to be quite patent. I, however, think that the expression "at any time" used in Section 36 calls for a construction in harmony with the purpose or subject-matter of the whole Act guided by reasoning and judgment in the light of the constitutional guarantees, and not on bald literalness, for, though words have meaning in and of themselves, they invariably get colour and content from their context, and the fundamental principles of our jurisprudence. Of the two riv....
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....des that scheme can be varied or revoked at any time. There is nothing in the section or the Act to warrant the proposition that the words "at any time" should not receive their literal meaning, and, in my opinion, the Courts would not 'be justified in assuming that though the Legislature stated in the section that the scheme could be varied or revoked at any time, the Legislature in fact intended that such variation or revocation could only be made during consolidation proceedings before repartition and not subsequently. Such an Interpretation is also not warranted by the words of subsection (1) of Section 24 of the Act, which reads as under: "(1) As soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them, the scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation, or, as the case may be, by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of subsections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of thi....
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....on page 95, it is observed as under: "In Colquhoun v. Brooks, (1889) 14 AC 493, Lord Herschell said: 'It is beyond dispute, too, that we are entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the Legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act'. And Lord Davey in Canada Sugar Refining Co. v. R. (1898) AC 735, said: 'Every clause of a statute should be construed with references to the context and other clauses in the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter'." 73. Argument is advanced on behalf of the appellants that if variation or revocation of a scheme is permitted at any time, it would create an uncertainty of title. In this respect, I am of the view that consolidation of holdings to some extent always involves an uncertainty of title. If despite that the Legislature has made provisions for consolidation for the ultimate good, there is no r....
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....ardly be said to arise It is not allowable says Vattel, to interpret what has no need of interpretation. Absoluta sententia expositore non-indiget. (Plain words require no explanation.) Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The rule of construction is 'to intend the legislature to have meant what they have actually expressed'. It matters not, in such a case, what the consequences may be. Where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be en-forced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect When once the meaning is plain, it is not ....